Equitable remedies

Introduction:
Equitable remedies are distinguished from legal remedies (which are available to
successful claimants as of right) by the discretion of the court to grant them. The
court will only grant an equitable remedy if it is satisfied that it is fair and just
thing to do in the circumstances. Equitable remedies have three features:
 They are discretionary.
 They act in personam.
 They are only granted where the common law remedy or damages are
inadequate.
Equitable remedies cover a kaleidoscope of pecuniary, proprietary and personal
forms of relief.
Following are the remedies provided under special relief act, 1877:
1. Specific performance:
A contract is an agreement upon sufficient consideration to do or not to do a particular act. The
party on whom this contractual obligation rests must not fails to discharge such obligation. In
case of his failure, the other party will have a right sue for performance of the contract. This is
called ‘Specific Performance’. Orders of specific performance are granted when damages are
not an adequate remedy, and in some specific cases such as land sale. Such orders are
discretionary, as with all equitable remedies, so the availability of this remedy will depend on
whether it is appropriate in the circumstances of the case. Under current law, courts grant
specific performance when they perceive that damages will be inadequate compensation.
Specific performance is deemed an extraordinary remedy, awarded at the court’s discretion.
Specific performance means enforcement of exact terms of the contract. Under it the plaintiff
claims for the specific thing of which he is entitled as per the terms of the contract. For
example, if A agrees to sell certain shares to B of a specific company which are limited in
number and after payment made by B, if A refuses to sell the shares then B is entitled to
recovery of those shares.
According to section 12 of special relief act, Specific performance of a contract can be
enforced by the court in certain situations, such as

 When the act agreed to be done is in the performance of a trust,

 when there is no standard to measure the actual damage caused by non-
performance.
  When pecuniary compensation would not provide adequate relief,
 Or when it is unlikely to obtain pecuniary compensation for non-performance.
Case law
Lumley vs. Wagner (1852)
In this case, the plaintiff, Lumley, had engaged the defendant, Wagner, to sing at his theater for
a specified period of time. Wagner breached the contract by refusing to sing. Lumley sued for
specific performance, arguing that damages would not be an adequate remedy because he
could not find another singer of Wagner's caliber.
The court granted Lumley's request for specific performance, holding that damages would not
be an adequate remedy because Wagner was a unique performer. The court also found that it
was equitable to grant specific performance because Wagner had no legitimate reason for
breaching the contract.
2. Injunctions:
Unlike specific performance, injunctive relief usually takes the form of a court order
compelling a party to refrain from doing a particular act. Injunctive relief is an inherent,
equitable remedy, and is most commonly used to restrain breaches of equitable
obligations or to assist in the enforcement of legal obligations.
Definition of injunction by Halsbury:
“An injunction is a judicial process whereby a party in an order to refrain from doing or
to do a particular act or thing”.
Under sections 52 to 55 of the special relief act, 1877 following kinds of injunctions are
provided:
 Temporary injunctions are granted at any stage of a suit, and are intended to preserve
the status quo until the final decision of the court.
 Perpetual injunctions are granted at the hearing and upon the merits of the case. They
are intended to prevent a breach of an obligation existing in favor of the plaintiff,
whether expressly or by implication.
 Prohibitory injunctions are orders that restrain a party from doing something.
 Mandatory injunctions are orders that compel a party to do something.
3. Rectification:
Rectification is an equitable remedy that is normally granted in a situation where a
written instrument does not accord with the true agreement of the parties. If by
mistake, a written instrument does not accord with the true agreement of the parties,
equity has the power to reform or rectify that instrument so as to make it accord with
the true agreement.
Doctrine of rectification of an instrument is based on the maxim equity looks to intent
rather than form. The equity courts tries to rectify written contracts and instruments so
that they can be confirmable with the true intent of the parties. The concept of
 rectification of instruments arises when the terms of instrument failed to establish exact
intention behind the instrument. In general, a party is not allowed to contradict an
instrument, but where it is contended that instrument does not reflect real intention
behind the instrument because of fraud or mutual mistake, part may get the instrument
rectified and such a relief is based on equity.
Under section 31 of the special relief act it is provided when an instrument may be
rectified:
If a contract or other written instrument does not accurately reflect the intentions of the
parties due to fraud or mutual mistake, either party can file a lawsuit to rectify the
instrument, and the court may modify it to express the true intention, as long as it does
not harm the rights of third parties who acted in good faith and for value.
Whiteside v. Whiteside [1950] is a case that established the principle that a rectification
of a document can be ordered if it is clear that the parties intended the document to
mean something different from what it actually says.
The case involved a will. The testator, Mr. Whiteside, had two sons, John and William.
The will left the bulk of his estate to John, but it also left a small legacy to William.
William argued that the will should be rectified to include a larger legacy for him.
The court found that it was clear that Mr. Whiteside had intended to leave a larger
legacy to William. The will had been drafted by a professional lawyer, and it was unlikely
that Mr. Whiteside had intended the document to mean what it actually said.
The court ordered the will to be rectified to include a larger legacy for William.
4. Rescission:
Rescission can be legally defined as “the abrogation of a contract, effective from its
inception, thereby restoring the parties to the positions they would have occupied if no
contract had ever been formed. The word “rescission” is derived from the Latin term
“rescindere”, which means to cut or tear open. It is an unwinding of a transaction or
undoing of a contract. When any contract is made through fraud, undue influence,
coercion, mistake, or misrepresentation, it is voidable, such contracts are rescindable.
The right is available to a party to a transaction to set that transaction aside and be
restored to his former position. It is not strictly a judicial remedy. Rather, it is effected
by the act of the party entitled to rescind. However, it is still a remedy to the extent that
the assistance of the court is usually required to determine whether a party can rescind
and also obtain restitution of property handed over pursuant to transaction.
Section 35 of the Specific Relief Act 1877 outlines the circumstances under which a
person interested in a contract in writing may sue to have it rescinded. The Court may
adjudicate such rescission in the following cases:
 Where the contract is voidable or terminable by the plaintiff
 Where the contract is unlawful for causes not apparent on its face, and the defendant is
more to blame than the plaintiff
  Where a decree for specific performance of a contract of sale, or of a contract to take a
lease, has been made, and the purchaser or lessee makes default in payment of the
purchase-money or other sums which the Court has ordered him to pay
 If the purchaser or lessee is in possession of the subject-matter and the Court
finds that such possession is wrongful, the Court may also order him to pay to
the vendor or lessor the rents and profits, if any, received by him as such
possessor.
Case law
Durga Prasad vs. Madan Lal:
This case concerned a contract for the sale of a house. The seller misrepresented to the buyer
that the house was free from encumbrances, when in fact it was subject to a mortgage. The
buyer sought to rescind the contract on the grounds of misrepresentation. The Supreme Court
held that the buyer was entitled to rescind the contract, as the misrepresentation had been
material to the buyer´s decision to enter into the contract.
5. Cancellation of an instrument:
Cancellation of instruments means nullification cancellation of instruments means the
nullification of a written document which is proof of a transaction between the parties that are
part of the transaction. An instrument being every document by which any right or liability is, or
purports to be created, transferred, limited, extended or extinguished. If there is an instrument,
which is void or voidable due to some reason and a party to such an instrument has enough
reasons to believe that the said instrument has the potential to act against him and may even
cause serious injury to him, then such a person can file a suit with regards to the cancellation of
such an Instrument. This is a discretionary relief.
Under section 39 of special relief act it is provided when a court may order cancellation.
According to it:
Any person who believes that a written instrument may cause them serious harm can sue to
have it declared void or voidable, and the court may order its cancellation and delivery. If the
instrument is registered, the court will also send a copy of the decree to the registration officer
for cancellation.
Example:
A conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land
and produces a forged instrument stating that the conveyance was made to B in trust for him. C
may obtain the cancellation of the forged instrument.
6. Declaratory decrees:
 The declaratory decree is the edict which declares the rights of the plaintiff. It is a
binding declaration under which the court declares some existing rights in favour of the
plaintiff and declaratory decree exists only when the plaintiff is denied of his right which
the plaintiff is entitled to. After that specific relief is obtained by the plaintiff against the
defendant who denied the plaintiff from his right.
Discretion of Court as to declaration of status or right.
Under section 42:
Any person entitled to any legal character, or to any right as to any property, may
institute a suit against any person denying, or interested to deny, his title to such
character or right, and the Court may in its discretion make therein a declaration that he
is so entitled, and the plaintiff need not in such suit ask for any further relief.
Bar to such declaration:
Provided that no Court shall make any such declaration where the plaintiff, being able
to seek further relief than a mere declaration of title, omits to do so.

Example:
A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right
of way across the land. A may sue for a declaration that they are not entitled to the right so
claimed.
Conclusion:
Equitable remedies are remedies that are available in equity. Equity is a system of justice that
developed alongside the common law system, and it is based on the principle of fairness.
Equitable remedies are designed to provide relief to parties who have been wronged, but who
cannot obtain adequate relief through the common law system. The equitable remedies
discussed above which are provided under The Special Relief Act, 1877.